Editor’s Note: The following guest commentary is from Ross Garber, a partner in the Washington, D.C. and Hartford, Connecticut offices of Shipman & Goodwin LLP, where he practices in the areas of government investigations and white-collar criminal defense. He is the former co-chair of the White Collar Crime Committee of the National Association of Criminal Defense Lawyers and the Public Corruption Subcommittee of the American Bar Association.
Many in the white-collar defense bar viewed last term’s Supreme Court decisions about honest services fraud as a seismic event. In Skilling v. United States and two other honest services fraud cases, the Supreme Court determined that 18 U.S.C. § 1346 applied only to bribery and kickback schemes and not more amorphous unsavory conduct such as self dealing. With that clarification, the Court held that Section 1346’s proscription of any “scheme or artifice to deprive another of the intangible right of honest services” was not unconstitutionally vague. After all, wrote the majority in Skilling, “[a] criminal defendant who participated in a bribery or kickback scheme … cannot tenably complain about prosecution under § 1346 on vagueness grounds.”
In cases subject to the reach of federal bribery or kickback statutes, there should be the type of clarity the Court envisioned. Those statutes define bribery and kickbacks, terms that also have been the subject of many federal court decisions. Federal judges all over the country are accustomed to instructing juries on the elements of bribery and kickbacks. It is not surprising, therefore, that many defense lawyers whose clients were charged with or convicted of honest services fraud, but not violating bribery or kickback statutes, expected positive news from prosecutors after Skilling. So far, most of those defense lawyers and their clients have no reason to celebrate.
A case currently pending in the U.S. District Court for the District of Columbia is emblematic, and demonstrates that unless the Department of Justice quickly adjusts its position on honest services prosecutions, the Supreme Court may soon have occasion (and good reason) to revisit the honest services doctrine.
In United States v. Kevin Ring, the defendant, a lobbyist affiliated with Jack Abramoff, was charged with honest services fraud for wining and dining public officials and providing them with tickets to sporting events, a practice that was not uncommon among Washington lobbyists. Ring was charged with honest services fraud, but was not accused of violating any statute prohibiting bribes or kickbacks. Over the course of the trial, which took place shortly after briefing on last term’s honest services cases, the government’s theory morphed and evolved, likely in response to the theories raised in the Supreme Court honest services briefs. By the end of the trial, prosecutors were arguing that Ring had engaged in bribery-like conduct, but disclaimed any need to establish the quid pro quo necessary to establish actual bribery. There was also substantial disagreement between the government and Mr. Ring’s lawyers (Andrew Wise and Timothy O’Toole of Miller & Chevalier) about the elements of fraud that must be proven. Notably, there was no statute that required lobbyists like Mr. Ring to disclose entertainment he provided to public officials; and unlike public officials, Ring unquestionably had no fiduciary duty to the public.
The jury in Ring failed to reach a unanimous verdict, and a mistrial was declared. After the Supreme Court decided Skilling, the government quickly announced that it did not view the Supreme Court’s decision as a deterrent to retrying Mr. Ring, despite the fact that he was not charged with violating a bribery or kickback statute and notwithstanding the manifest confusion about the elements of fraud that must be established. Post-trial briefs and extensive oral argument reflected that the Supreme Court’s Skilling decision had brought much less clarity than the majority had hoped. Questions and disagreements abounded. Judge Ellen Segal Huvelle, who also presided over the first Ring trial, struggled mightily with the many difficult legal issues prompted by the government’s decision to seek a retrial. As reported by Main Justice, Judge Huvelle said at oral argument: “Nobody can articulate — including us — what someone has pled to in an honest services [charge].”
The Ring case is not an anomaly. In several cases around the country the government seems committed to an expansive reading and aggressive application of the honest services statute. But Ring is emblematic and, as perhaps the first honest services cases to go to trial after Skilling, it will be one to watch. While Judge Huvelle denied a defense motion to dismiss the charges against Mr. Ring, the transcript of the oral argument on defense motions reflects that the judge is carefully evaluating the morass of legal issues raised by the government’s approach. This will not be an easy case for prosecutors to try. And should the government get a conviction, there will be myriad appellate issues. One must wonder why the Justice Department would want Ring, which is not a bribery or kickback case, to be one of the first post-Skilling honest services prosecutions. Perhaps Judge Huvelle will ultimately save the honest services statute by providing the clarity that the Supreme Court thought it had imposed in Skilling. Otherwise, Justice Scalia and the other dissenters in Skilling may soon have a chance to say they told us so.
Ross Garber is a partner in the Washington, D.C. and Hartford, Connecticut offices of Shipman & Goodwin LLP. The views expressed are his own.